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ELCPartially AllowedApplication dated 31/7/2019 in Kitale ELC Case (judgment delivered 18/7/2019)· [2019] KEELC 1188 (KLR)

Jane Njeri Ikigu v Tuwan Farm Limited & another [2019] KEELC 1188 (KLR)

Environment and Land Court
24 October 2019
2,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court stayed only the sale of disputed land, not the whole judgment, because the losing party never occupied it.

What this practically means

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Executive summary

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This ruling by Mwangi Njoroge J of the Environment and Land Court at Kitale determines the 2nd defendant's application dated 31/7/2019 under Order 42 rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking stay of execution of the judgment delivered on 18/7/2019 pending appeal. The applicant relied on a notice of appeal, alleged irreparable loss through possible transfer of the suit land to third parties, and contended the appeal would be rendered nugatory. The plaintiff opposed, arguing entitlement to the fruits of her judgment, that the court had found the applicant never in occupation of the suit parcels, and that she was willing to surrender titles to court and not dispose of the land. The court found an appeal existed via the notice of appeal filed under Order 42 rule 6(4); that the application filed 13 days after judgment was timeous; that since the applicant had been found never to have been in possession, only the risk of disposal could amount to substantial loss, which the respondent's undertaking and readiness to surrender titles neutralised; and that want of an offer of security was not fatal, the court being empowered to impose its own conditions, following its earlier decision in Obed Readon Onyango v Florence Juma Nabiswa. The court granted a limited stay restraining the respondent from disposing of the interest in the suit property pending appeal, conditional on filing and serving the record of appeal and paying taxed costs within 45 days, failing which the stay lapses. No costs order was made on the application itself.

Key legal issues

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01

Existence of an appeal as a threshold for stay

Holding

A filed notice of appeal suffices to show an appeal is in place under Order 42 rule 6(4), allowing the court to consider the merits of the stay application.

Reasoning

The court examined the record and noted a notice of appeal dated 23/7/2019 filed on 25/7/2019, seven days after the judgment. Under Order 42 rule 6(4) an appeal to the Court of Appeal is deemed filed when notice of appeal is given, so the threshold condition was met and the court proceeded to consider the other grounds.

p. 2
02

Substantial loss

Holding

Having found the applicant was never in possession, only the risk of disposal of the suit land could constitute substantial loss; the respondent's undertaking not to dispose of the land and to surrender titles to court staved off that risk.

Reasoning

The judgment under appeal had found the plaintiff in possession since 1981 while the 2nd defendant was not in possession. Without possession, the only loss the applicant could suffer was disposal of the land. The respondent's undertaking not to dispose of it and readiness to surrender titles to court was held reasonable enough to avert any risk of loss, so only a limited stay was warranted.

p. 2
03

Unreasonable delay

Holding

An application lodged 13 days after judgment was filed timeously, satisfying the requirement of no unreasonable delay.

Reasoning

The judgment was delivered on 18/7/2019 and the application lodged on 31/7/2019. The court found the 13-day interval did not amount to unreasonable delay, satisfying the second condition under Order 42 rule 6.

p. 2
04

Security for due performance of the decree

Holding

Failure by the applicant to offer security is not fatal; the court may itself impose suitable conditions, and here the only obligation on the applicant was costs and compliance with an injunction.

Reasoning

Relying on its own earlier decision in Obed Readon Onyango v Florence Juma Nabiswa & another, the court held it is not fatal for an applicant not to offer security since the court may impose it. The judgment appealed from placed no responsibility on the 2nd defendant to perform the decree except payment of costs and abiding by a permanent injunction, so conditions were attached instead.

p. 3

Legal principles established

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  • Where the applicant is not in possession of the suit land, the risk to be addressed on stay is disposal of the property, and a stay limited to restraining disposal, coupled with undertakings and conditions, suffices.

Court orders

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  1. 1.A stay of execution issued restraining the respondent from in any way disposing of the interest in the suit property pending the hearing and determination of the intended appeal
  2. 2.The stay is conditional on the applicant filing and serving the record of appeal within 45 days and payment of the taxed costs of the suit due to the plaintiff within the same period, in default of which the stay order will lapse

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 rule 6 (including 6(1), 6(2), 6(4))
  • Civil Procedure ActSection 3A

Cases cited (5)

  • Antoine Ndiaye -vs- African Virtual University
    [2015] eKLR
  • Reliance Bank -vs- Norlake Investments Ltd
    [2002] E.A 227
  • Kinyunjuri Muguta -vs- Wotuku Muguta
    [2918] eKLR (as printed), Keruguya HC No.11 of 2017
  • Kenya Commercial Bank Ltd -vs- Sun City Properties Ltd & 5 Others
    [2012] eKLR
  • Obed Readon Onyango -vs- Florence Juma Nabiswa & Sarah Chepkemobi Nabiswa
    Kitale ELC No. 93 of 1997
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jane Njeri Ikigu v Tuwan Farm Limited & another [2019] KEELC 1188 (KLR)", Case Analysis (2019). Application dated 31/7/2019 in Kitale ELC Case (judgment delivered 18/7/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1188/eng@2019-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.